Tuesday, October 11, 2016

Hiring Environmental Policy / Planning Staff in Buffalo

Here is a job announcement from my school that I thought might interest some of you. I am happy to field any questions I can about the job or about living in the wonderful city of Buffalo...


We seek outstanding candidates with interdisciplinary expertise and experience in policy and planning disciplines relevant to urbanization, sustainability, resilience, climate change, and equity. The specialist will work collaboratively with faculty from different departments on campus, including those within the School of Architecture & Planning, School of Law, and others to develop and support environmental science and policy research. We anticipate that the Specialist will spend 50% time developing new research programs and 50% time working on providing support to existing research programs, including developing large interdisciplinary grant proposals to support research programs.

Minimum qualifications: Minimum educational requirements include a Master's degree in city/urban/regional planning, law, management, public policy, public administration, sociology, or a related discipline. A Ph.D., J.D., or other doctoral degree in one of these fields is preferred. Work experience of 4-5 years beyond the Master's degree or two years beyond a doctoral degree is required. A proven record or strong drive toward team research, a strong record of research publication, and proven ability to write grant proposals are all desirable skills. Research skills including statistical, geographic and qualitative analysis are highly desired. Applicants should submit a CV highlighting relevant experience and names of at least three references via the UBJobs system (https://www.ubjobs.buffalo.edu/). Review of applications will begin September 26, 2016 and will continue until the position is filled. Salary/compensation will be dependent on educational background and experience. For additional information, please email renew@buffalo.edu.

About RENEW: The Institute on Research and Education in Energy, Environment and Water (RENEW) at the University at Buffalo (UB) aims to advance Energy, Water and Environmental Sustainability as a foundation for a regenerative economy through interdisciplinary research cutting across UB's academic organizations. The institute's interdisciplinary focus involving the faculties of the School of Architecture and Planning, College of Arts and Sciences, School of Engineering and Applied Sciences, School of Law, School of Management, School of Public Health and Health Professions, and the School of Medicine and Biomedical Sciences is designed to foster new collaborations and innovative ideas. The initiative taps the leadership and vision of deans and faculty at these seven schools and colleges. The institute engages over 100 faculty members in these seven schools. Further details can be found at http://www.buffalo.edu/renew/Employment-Opportunities.html.

October 11, 2016 | Permalink | Comments (0)

Monday, October 10, 2016

Planning for Wildfire in the Wildland-Urban Interface, Part 2: The Price of Wildfire

[This post is part of a series on wildfire planning.  View previous posts in this series at the bottom of the page.  Download the full wildfire planning guide from which these posts are excerpted, here.]

 In 1995, fire made up 16 percent of the U.S. Forest Service’s annual appropriated budget; in 2015, wildfire consumed more than 50 percent of the agency’s budget, a benchmark reflective of steadily rising costs.[2]  At the same time, while 91 percent of federal appropriations for wildfire management are allocated to protect federal lands, it is increasingly clear that federal funds are being used to protect private homes and other structures “adjacent to federal lands [that] can significantly alter fire control strategies and raise costs.”[3]  In a survey of Forest Service land managers, estimates were that “[fifty] to [ninety-five] percent of firefighting costs were attributable to protection of private property.”[4]  Moreover, a study conducted for the Montana legislature found that firefighting costs are “highly correlated with the number of homes threatened.”[5]  A recent study of wildfires in Wyoming found that protecting just one isolated home added as much as $225,000 to the overall cost of fighting a fire.[6] 

The rising cost of fighting fires and, in particular, those that threaten private property, has many factors including terrain, fuels, and weather.[7]  Increasingly, though, attention is being directed to the rapid growth of remote developments—especially those not designed or maintained with wildfire in mind—at the urban periphery often referred to as the “wildland-urban interface,” or WUI (pronounced “Woo-E”).  There is good reason why attention is turning to these types of developments:  six of the 10 most expensive fires in the past 100 years were WUI fires despite the fact that WUI fires account for just a small fraction of overall fires fought in any given year.[9] 

According to one widely used WUI definition, only 14 percent of the WUI is developed.[10]  If current development patterns continue, development in the WUI will almost certainly grow substantially, resulting in even further increases in wildfire protection costs.  With the Mountain West perennially ranking as one of the country’s fastest growing regions, this WUI development is certain to grow over time.  As this growth occurs, certain mismatches in process will be exacerbated.  Local governments retain authority to approve WUI development through applications of local zoning, building, fire, and subdivision codes even though it is typically the federal government that bears the greatest burden in protecting—and has the greatest resources to protect—those developments from wildfire.  A few local governments in the West are integrating a deep knowledge of wildfire protection policy into their planning and development processes.  More collaboration is necessary to build an enduring solution to wildfire near development.  Subsequent posts on the blog will focus on these pioneering communities that are trying out new approaches to planning for wildfire, and what the rest of the West can learn from them.


[2] U.S. Forest Service, The Rising Cost of Wildfire Operations:  Effects on the Forest Service’s Non-Fire Work 2 (2015), http://www.fs.fed.us/sites/default/files/2015-Fire-Budget-Report.pdf.

[3] Ross Gorte, Headwaters Econs., The Rising Cost of Wildfire Protection 7, 14 (2013), http://perma.cc/W4GX-PNGF.

[4] Office of the Inspector General, U.S. Dep’t of Agric. Audit Report:  Forest Service Large Fire Suppression Costs ii (2006), http://www.usda.gov/oig/webdocs/08601-44-SF.pdf, archived at http://perma.cc/9YDE-LS2P; see also Urban Wildland Interface Communities Within the Vicinity of Federal Lands That Are at High Risk from Wildfire, 66 Fed. Reg. 752,753 (Dep’t of Agric. Jan. 4, 2001) (notices) (defining the WUI as “where humans and their development meet or intermix with wildland fuel”).

[5] Headwaters Econs., Montana Wildfire Cost Study Technical Report18 (2008), http://perma.cc/D7U5-BBUA; see also Patricia H. Gude et al., Headwaters Econs., Evidence for the Effect of Homes on Wildfire Suppression Costs 14 (2011), http://perma.cc/Y9CB-R3AY (finding the same in a similar study conducted in California).

[6] Anna M. Scofield, Residential Development Effects on Firefighting

Costs in the Wildland-Urban Interface 3 (2015), http://wyoextension.org/agpubs/pubs/B-1268.pdf.

[7] William E. Mell et al., The wildland–urban interface fire problem – current approaches and research needs, 19 Int’l J. of Wildland Fire 238, 239 (2010).

[9] See Headwaters Econs., The Rising Cost of Wildfire Protection 1 (2013), http://headwaterseconomics.org/wphw/wp-content/uploads/fire-costs-background-report.pdf.

[10] Headwaters Econs., Solutions to the Rising Costs of Fighting Fires in the Wildland Urban Interface 5 (Dec. 2009), http://headwaterseconomics.org/wphw/wp-content/uploads/HeadwatersFireCosts.pdf.


Previous posts in this series:

Part 1: An Overview of WUI Wildfire Planning


October 10, 2016 | Permalink | Comments (0)

Tuesday, October 4, 2016

Planning for Wildfire in the Wildland-Urban Interface, Part 1: An Overview of WUI Wildfire Planning

Tomorrow, my colleagues and I will officially unveil our new 167-page guide entitled Planning for Wildfire in the Wildland-Urban Interface: A Resource Guide for Idaho Communities.  The guide includes a novel four-step process to guide wildfire planning, over 30 examples of code provisions from throughout the West, the results of a large wildfire risk perception study, and more!

If you are in Boise, please come and join us for the unveiling of the guide in a joint presentation with Idaho Smart Growth on Wednesday, October 5 from 6 - 7:30 PM in Room 325 of the Idaho Law & Justice Learning Center (514 W. Jefferson Street in Boise).

On the blog, I plan to offer a series of posts that convey much of what we learned, and what we propose, that is applicable to wildfire planning not just to Idaho, but to communities throughout the West.  Through the project, we also came to believe that wildfire planning is still very much in its infancy; for that reason, we are calling this guide a "Discussion Draft."  Over the next two years, we will be engaged in a variety of outreach activities as well as several projects where we actually work with communities to try and implement the method of wildfire planning that we propose here.  After those experiences, we admit that we may well revise the method we propose; at the very least, we know we will have a deeper understanding of what works, and what doesn't.  We plan to incorporate that "earned knowledge" back into the guide in an updated version.

Without further ado, here is a summary of the guide, with more detail to come in future posts

Overview of WUI Wildfire Planning

The price of wildfire in the West has never been higher.  Why?  And what can Western communities do about it?

One way to measure the price of wildfire is the dollars spent on suppression alone.  In 1995, fire made up 16 percent of the U.S. Forest Service’s annual appropriation budget; in 2015, wildfire consumed more than 50 percent of the agency’s budget, a benchmark reflective of steadily rising costs.  A recent study of wildfires in Wyoming found that protecting just one isolated home can add $225,000 to the overall cost of fighting a fire.  But the price of fire is also told in lost recreational opportunities, scarred landscapes adjacent to city centers, loss of wildlife habitat, presence of invasive species, and increasingly, after-effects such as flood and landslides, that can cause even greater long-term harm to a community that the initial fire.

Wildfires occur in a variety of terrain, fuels, and weather.  This guide is focused on wildfires that occur in the wildland-urban interface, or WUI (pronounced “WOO-ee”).  The WUI is both a sociological and legal term that is fluid based upon context; however, a common definition used is that the WUI is where “humans and their development meet or intermix with wildland fuel.”  In 2006, the Forest Service adopted a similar policy definition, which states that  “[t]he WUI is the area where structures and other human development meet or intermingle with undeveloped wildland.” 

Although fewer wildfires occur in the WUI compared to timberlands or rangelands, they are of increasing concern for several reasons.  First, WUI fires are expensive to fight.  Six of the ten most expensive fires in the past 100 years were WUI fires.  Further, the WUI is relatively undeveloped.  By one account, just 14 percent of the WUI is developed, leaving a vast potential region of growth that, if developed without wildfire in mind, could yield staggering costs as the West grows.  Finding ways to prevent “locking in” long-term, high cost development patterns, while still encouraging such development and growth, is a threshold issue facing Western property owners, taxpayers, and governments.

The amount of science and technology dedicated to addressing wildfire in the WUI issues is substantial:  decades of research provide a rich array of knowledge about fire from which to draw.  The missing piece of the puzzle is the planning and legal framework that would apply that knowledge to protect property and lives from fire.  How can we use planning, law and incentives to implement what we already know about wildfire and keep our communities safe?

The proposal offered by this guide is a conceptual framework that local communities—governmental and non-governmental—can use over time.  The framework, which this guide calls the “WUI Wildfire Planning Process,” consists primarily of a four-step, cyclical planning process that revolves around the inter-governmental National Cohesive Strategy Vision and Goals for wildfire, and is supported at all times by education and outreach. 

Although little known outside of the fire community, the National Cohesive Strategy Goals are simple, but important, goals established through a five year planning process (2009 to 2014) in which federal agencies, state, tribal and local governments, as well as non-governmental parters, built a common vision of how the country could address wildfire.  The three goals of the Cohesive Strategy are maintaining landscapes; developing fire-adapted communities; and developing a multi-jurisdictional wildfire response based upon risk-based decisionmaking.  These Cohesive Strategy Goals are the core around which the WUI Wildfire Planning Process revolves.

The four active steps of the WUI Wildfire Planning Process are illustrated below.  They are:  draft and adopt a community wildfire protection plan (CWPP); regulate and incentivize the built environment at all scales; implement, maintain and enforce regulations and incentives; and respond to substantial changes such as wildfires or the passage of time.  The conceptual framework illustrates a progression of planning that leads to successful and well-informed results; however, wildfire experts know well that variations on these components and order can also yield successful wildfire planning results.  For purposes of beginning a dialogue about best practices for wildfire planning, the framework forms the backbone of the guide from which other discussions grow. WUI Wildfire Planning Process

Community wildfire protection plans are an excellent place to begin wildfire planning for several reasons.  A creature of federal law, CWPPs actually permit local communities to have a say in how wildfire on federal lands is maintained, which is a major concern for many Idaho communities.  Further, CWPPs make communities eligible for federal funding opportunities; such opportunities will grow as CWPPs are increasingly integrated into county All Hazard Mitigation Plans and, if properly updated every five years, will make wildfire hazards eligible for even more funds.  CWPPs are also important because they provide a framework for identifying wildfire risk at an ecological scale that permits local communities to think beyond their jurisdictional boundaries precisely because the process includes federal, state, tribal, and local government and non-governmental participants.  One of the limiting factors in the success of CWPPs in Idaho in the past has been that they have been conducted solely at the county level and by a select group of fire community individuals.  While county CWPPs are clearly still valuable, Idaho Department of Lands seeks to encourage the preparation of CWPPs at multiple scales, as contemplated by federal law and practiced in other Western states.  For instance, a county-wide CWPP may be supplemented by a city CWPP and even a neighborhood CWPP conducted by a homeowner’s association that has a particular wildfire hazard.  Each scale permits a different level of preparedness and analysis that is valuable.  CWPPs could also be more valuable by increasing the scope of participation to include others that will facilitate wildfire decisions in other parts of the process.  This would mean including local officials, local staff, and a proposed citizens’ advisory board, in addition to the traditional fire staff, in the CWPP process.

The second step in the process is for a local jurisdiction—a city or county—to decide on the package of regulations and incentives it will utilize to address the identified wildfire risk.  Doing so requires local governments to decide whether to allow development in areas of high wildfire risk and, if they do so, to decide how to respond with local values related to regulatory versus incentive-based approaches and the successes of each in relation to the risk.  The guide discusses several approaches that have worked well in other communities, which include: seeking co-benefits, such as open space, that may matter locally; seizing upon interest that often arises after a wildfire; choosing an approach that the community can support; and anticipating for wildfire’s after-effects, especially flood, landslide, aesthetic harm, and economic development issues.  There is no one-size-fits-all approach to wildfire.  For some communities, a simple approach could be to focus on the basics:  defensible space, metal roofs, and weed ordinances to reduce fuels.  This simple, effective solution can work very well in rural areas.  More urban areas will likely want a solution that fits the complexity of the built environment.  Regulatory tools are discussed at the community scale, such as comprehensive plans, specific plans, and land use zoning overlay districts; the neighborhood and subdivision scale; the individual site or project scale; and the building scale.  Non-regulatory tools are equally important and can supplement regulatory tools, or stand-alone.  They include the popular Firewise program, which is a valuable educational tool but which often yields uncertain results; insurance, which has a role to play in pricing fire risk; and homeowner’s associations, which are increasingly popular in Idaho and have served as a vehicle for local communities to provide enhanced wildfire security for their community independent of government regulation.

Once regulations and incentives have been adopted, they must be applied to specific projects and enforced over time; similarly, incentive programs must be implemented and examined to determine efficacy.  This third step may be the most important—it is where ideas yield results—but it is also an especially hard step for wildfire.  That is because many of the factors associated with wildfire risk reduction require maintenance—of buildings, of landscaping, of cleanliness near structures—that collides with the entitlement-driven development process that prioritizes one-time, up-front conditions of approval.  This section of the guide begins by discussing the importance of communication between local government departments to address precisely this issue.  The section then turns to the types of enforcement mechanisms that are being tried by some Idaho communities, but also communities throughout the West.  These include homeowner association CC&Rs that make local governments the third-party beneficiaries of wildfire-related maintenance agreements; using the development agreement process to plan for wildfire upfront; using zoning to require maintenance; as well as re-tooling nuisance ordinances to address wildfire.  The section also discusses some non-enforcement mechanisms, such as disclosure techniques that prioritize informing property owners of the wildfire risk on their lands, and how to mitigate it.  Other approaches include cities that conduct wildfire fuel reduction work for private property owners so long as they sign a maintenance agreement for on-going upkeep of the mitigation.

The fourth, and final step in the process occurs when there is a substantial event, such as a wildfire, or even a secondary effect like a flood or landslide, that causes the local community to realize that it needs to re-evaluate, and re-visit its wildfire planning strategy.  In addition to such an event, the passage of time becomes its own reason to revisit a wildfire planning strategy, if only because WUI demographics change quickly; an exurban community one year could be a bona fide bedroom community in a decade.  In addition, as Idaho moves to integrate CWPPs into All Hazard Mitigation Plans, the CWPPs will need to be reviewed every year and revised every five years for compliance with AHMP regulations.  The combination of wildfire events and the passage of time give local communities a number of reasons to revisit their approach to planning, determine what has worked and what has faltered, and create an amended plan going forward.

Although a community’s planning process may not follow this conceptual framework precisely, the frame provides a way to contemplate how to use all of the tools available to maximize wildfire preparedness.  Along the way, education remains a vital component of wildfire planning, both to communicate the nature of wildfire risk but also what it means to be prepared to face that risk.  To that end, Appendix A to the guide provides significant excerpts of codes from Idaho local governments, and some other local governments from throughout the West, to serve as models for similarly-situated communities.

This discussion is also enriched by the inclusion of a robust risk perception survey, which was conducted by surveying nearly 20,000 Idaho households in wildfire priority areas throughout the state in Fall, 2015 and Winter, 2016.  The guide provides significant helpful data worthy of review.  The most telling questions, however, may be those that reflect sentiment toward local regulation of fire.  Approximately 55% of respondents stated that WUI codes should differ from other areas that are less fire prone.  Support for more restrictive code and regulation exists with 46% answering yes, 23% maybe, and 30% no.  When asked whether they would be willing to pay a premium to be more “Firewise,” about 15% stated yes, about 36% maybe, and probably not combined with definitely not are almost 49%.  When asked whether they would support legislation to be more “Firewise,” about 37% stated yes, about 27% maybe, and probably not combined with definitely not are almost 35%.

A strong majority (68%) of respondents stated that they see themselves responsible to protect home and property.  A small minority (18%) of respondents stated that they see the local fire department as responsible to protect their home and property.  About 43% believe that the city or county government is responsible to protect home and property, whereas 37% do not believe this is the city or county’s role, and about 18% are not sure.  About 63% believe that the city or county government is responsible to protect public lands, whereas 23% do not believe this is the case, and about 19% are not sure about it. 

The survey data indicates that there is a political base for both regulation- and incentive-based approaches to wildfire, but local communities will have to make the case to those who are on the fence and unsure that all would be better off with some wildfire planning.  This is redoubled by the fact that additional survey results indicate that many believe that their own homes are safe despite acknowledging nearby fire risk to others.  

Making the case for wildfire planning requires understanding the problem and the methods we have to solve it.  This guide is a place to start, but it is just a beginning.  This version is labeled a discussion draft.  Over the next several years, the research team will host a variety of educational engagements across the state.  The guide will change in response to local feedback and the conversations that evolve about fire over time.  The goal will be simple:  to find local answers that keep wildfire from exacting the price that is inevitable in the status quo, something none of us can afford. 

About the Project

In 2015, the U.S. Forest Service and the Idaho Department of Lands provided a grant to scholars at the University of Idaho and Boise State University to address planning for wildland-urban interface (WUI) wildfires throughout Idaho’s varied terrain and communities.  In the first phase of the project, law students in the Economic Development Clinic at the University of Idaho College of Law’s Boise campus contacted all 200 Idaho cities and 44 Idaho counties to determine the status of existing wildfire regulations and incentives.  In addition, the Clinic also collected and reviewed all 44 of Idaho’s county wildfire protection plans, which were generally written between 2003 and 2007, as well as updates to those plans currently underway in several counties. 

At the same time, Boise State University’s Public Policy Research Center conducted a risk perception study to understand how Idahoans relate to wildfire risk.  In the second and third years of the grant, the University of Idaho’s Bio-regional Planning and Community Design program will join the effort, coordinating workshops around the State to assist local communities to find locally appropriate approaches to planning for wildfire in the WUI.  

Planning for Wildfire in the Wildland-Urban Interface was a collaboration and the first product of the grant; many people deserve credit.  Other authors of the guide include Thomas Wuerzer, Associate Professor for Real Estate Development, Nova Southeastern University (formerly of Boise State University); Eric Lindquist, Director, Public Policy Research Center, Boise State University; Jaap Vos, Program Head, Bioregional Planning & Community Design, University of Idaho College of Art and Architecture; Molly Mowery, Wildfire Planning International; Tyre Holfeltz, Idaho Department of Lands; and two students from my Economic Development Clinic, Brian Stephens and Alexander Grad.

October 4, 2016 | Permalink | Comments (0)

Wednesday, September 28, 2016

White House releases Housing Development Toolkit but fails to offer any new solutions to the housing crisis of major American cities

Earlier this week, the Obama administration released a white paper entitled, "Housing Development Toolkit."  The paper has a, well, scathing review of the effects of local housing policy in major American cities.  True enough.  The report's analysis won't be much of a surprise to land use practitioners, but it is worth a look for its effort to frame the existing problem and offer solutions.  In my opinion, while the report is a good read, many of the solutions offered in the report have already been tried for decades to little effect.  Something more bold will be needed to address the housing issues in larger American cities.  Here is the executive summary with a list of proposed options at the bottom (further explored in pages 14 to 19 of the report):


Over the past three decades, local barriers to housing development have intensified, particularly in the high-growth metropolitan areas increasingly fueling the national economy. The accumulation of such barriers – including zoning, other land use regulations, and lengthy development approval processes – has reduced the ability of many housing markets to respond to growing demand. The growing severity of undersupplied housing markets is jeopardizing housing affordability for working families, increasing income inequality by reducing less-skilled workers’ access to high-wage labor markets, and stifling GDP growth by driving labor migration away from the most productive regions. By modernizing their approaches to housing development regulation, states and localities can restrain unchecked housing cost growth, protect homeowners, and strengthen their economies.

Locally-constructed barriers to new housing development include beneficial environmental protections, but also laws plainly designed to exclude multifamily or affordable housing. Local policies acting as barriers to housing supply include land use restrictions that make developable land much more costly than it is inherently, zoning restrictions, off-street parking requirements, arbitrary or antiquated preservation regulations, residential conversion restrictions, and unnecessarily slow permitting processes. The accumulation of these barriers has reduced the ability of many housing markets to respond to growing demand.

Accumulated barriers to housing development can result in significant costs to households, local economies, and the environment.

Housing production has not been able to keep up with demand in many localities, impacting construction and other related jobs, limiting the requisite growth in population needed to sustain economic growth, and limiting potential tax revenue gains.

Barriers to housing development are exacerbating the housing affordability crisis, particularly in regions with high job growth and few rental vacancies.

Significant barriers to new housing development can cause working families to be pushed out of the job markets with the best opportunities for them, or prevent them from moving to regions with higher-paying jobs and stronger career tracks. Excessive barriers to housing development result in increasing drag on national economic growth and exacerbate income inequality.

When new housing development is limited region-wide, and particularly precluded in neighborhoods with political capital to implement even stricter local barriers, the new housing that does get built tends to be disproportionally concentrated in low-income communities of color, causing displacement and concerns of gentrification in those neighborhoods. Rising rents region-wide can exacerbate that displacement.

The long commutes that result from workers seeking out affordable housing far from job centers place a drain on their families, their physical and mental well-being, and negatively impact the environment through increased gas emissions.

When rental and production costs go up, the cost of each unit of housing with public assistance increases, putting a strain on already-insufficient public resources for affordable housing, and causing existing programs to serve fewer households.

Modernized housing regulation comes with significant benefits.

Housing regulation that allows supply to respond elastically to demand helps cities protect homeowners and home values while maintaining housing affordability.

Regions are better able to compete in the modern economy when their housing development is allowed to meet local needs.

Smart housing regulation optimizes transportation system use, reduces commute times, and increases use of public transit, biking and walking.

Modern approaches to zoning can also reduce economic and racial segregation, as recent research shows that strict land use regulations drive income segregation of wealthy residents.

Cities and states across the country are interested in revising their often 1970s-era zoning codes and housing permitting processes, and increasingly recognize that updating local land use policies could lead to more new housing construction, better leveraging of limited financial resources, and increased connectivity between housing to transportation, jobs and amenities.

This toolkit highlights actions that states and local jurisdictions have taken to promote healthy, responsive, affordable, high-opportunity housing markets, including:

Establishing by-right development

Taxing vacant land or donate it to non-profit developers

Streamlining or shortening permitting processes and timelines

Eliminate off-street parking requirements

Allowing accessory dwelling units

Establishing density bonuses

Enacting high-density and multifamily zoning

Employing inclusionary zoning

Establishing development tax or value capture incentives

Using property tax abatements






September 28, 2016 | Permalink | Comments (0)

Friday, September 9, 2016

Sharing Economy Friday, Post 3: TUESDAY: FREE ABA Professor's Corner webinar with Miller and Jefferson-Jones on sharing economy

This Tuesday, I am doing a webinar with Jamila Jefferson-Jones (UMKC) on hot topics on regulating short-term rentals.  It is free and sponsored by the ABA Real Property Trusts and Estates Section.  Thanks to Chris Odinet (Southern) for the invite.

Professors' Corner
Emerging Legal Issues in the Sharing Economy:
Regulating Short-Term Rentals

Tuesday, September 13, 2016
12:30-1:30 pm ET (11:30 am CT, 10:30 am MT, 9:30 am PT)


  • Jamila Jefferson-Jones, Associate Professor, University of Missouri-Kansas City School of  Law
  • Stephen R. Miller, Associate Professor, University of Idaho College of Law


  • Christopher Odinet, Horatio C. Thompson Endowed Assistant Professor, Southern University Law Center

Like network transportation companies and employment matching sites, sharing economy short-term rental (STR) companies are rapidly restructuring the American experience. That these sharing economy STR companies — which are typified by entities such as Airbnb and VBRO — have such impact and market share at a time during which much of their business model remains, at best under-regulated and at worst illegal, makes it one of the most important emerging areas in American law.

Our panelists will discuss recent cases and emerging issues that examine the tension inherent in regulating sharing economy STRs as cities and states grapple with issues such as: whether STRs cause gentrification and escalation of rents in highly-coveted neighborhoods; whether or how these companies should be subject to the payment of transient occupancy taxes, as well as impact fees and exactions associated with STRs; day limits on STR market use; use definitions that define STRs; licensing and permitting; forced information sharing; the application of anti-discrimination laws; takings and inverse condemnation litigation; rent control and subletting provisions in leases, as well as other litigation that will certainly arise and develop in the near future. Professors Miller and Jefferson-Jones are the authors of The State & Local Government Sharing Economy Manual:Strategies for Regulating and Managing On-Demand Services, an ABA publication forthcoming in 2017.

Professors' Corner is a monthly teleconference featuring law professors discussing recent cases or issues of interest to real estate practitioners and scholars.

September 9, 2016 | Permalink | Comments (0)

Sharing Economy Friday, Post 2: Jamila Jefferson-Jones on Airbnb's anti-discrimination policy

Yesterday, Airbnb offered a new anti-discrimination policy. NPR, NYT, WSJ.

Jamila Jefferson-Jones (UMKC), who has written about the subject (see here), commented at The Guardian and New York Times and offered some nice insights.

September 9, 2016 | Permalink | Comments (0)

Sharing Economy Friday, Post 1: Donald Kochan on what it means to "share" property

Donald Kochan (Chapman) has a new article on the sharing economy, "I Share, Therefore It's Mine," now available on SSRN.  Here is the abstract:

Uniquely interconnecting lessons from law, psychology, and economics, this Article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals then is that the property system is well-suited to create recognizable and enforceable ownership norms that include the rights to acquire and retain ownership of property (parting with it only on terms defined by the owner), thereby also providing necessary economic incentives to share. Along the way, this article bridges the psychology research with Hohfeld’s description of the nature of rights, explaining the corresponding rights characterizations appropriate to describe each step in a child’s development of ownership understanding.

When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that “ownership understanding” reveals is necessary for individuals to feel secure in sharing. So too does the development of the right to exclude and the corresponding right to include in property law track the underlying psychology to create the prerequisites in law to effect what might be called a “legal ownership understanding” that feeds the sharing economy, with sharing being simply an exercise of the right to include. The Article concludes with an ownership-sensitive definition of sharing that should prove useful to courts, regulators, and scholars alike, while remaining largely agnostic on the scope of desirable regulation of the sharing economy.

September 9, 2016 | Permalink | Comments (0)

TODAY: Free RLUIPA update webinar from ABA State & Local Gov Section

From Jessica Bacher, Chair of the Chair, Land Use Committee, ABA Section of State and Local Government Law:

Please join us today for our September Committee online meeting. The meeting will begin with a short discussion of committee business -- offering opportunities for all of our members to participate in CLE programs, book projects, speaking opportunities and periodical publications -- followed by a substantive program that you will not want to miss.

Today's FREE Webinar Sponsored by the Land Use Committee is scheduled for 2:00 pm EST, and will feature as our speaker Daniel P. Dalton, Esq., of Dalton & Tomich PLC, presenting a RLUIPA Update.

Joining us from a computer? Simply click https://zoom.us/j/6317617137<https://webmail.tourolaw.edu/owa/UrlBlockedError.aspx<https://zoom.us/j/6317617137%3chttps:/webmail.tourolaw.edu/owa/UrlBlockedError.aspx>>.

Joining us from a mobile device? Download the Zoom app and then click https://zoom.us/j/6317617137<https://webmail.tourolaw.edu/owa/UrlBlockedError.aspx<https://zoom.us/j/6317617137%3chttps:/webmail.tourolaw.edu/owa/UrlBlockedError.aspx>>.

Joining us by phone? Call either

+1 415 762 9988 (US Toll) or +1 646 568 7788 (US Toll)

and enter Meeting ID: 631 761 7137

Please also save-the-date for our upcoming online meetings:

     *   October 14, 2016--featuring Wendie Kellington on Drones

     *   December 9, 2016--featuring Jess Phelps on National Historic Landmarks

     *   January 13, 2017--featuring Robert Thomas on Regulatory Takings: Emerging Issues

     *   March 10, 2017--featuring Alexander Judd on Telecomm Law

     *   May 12, 2017--featuring Andy Gowder on Exactions & Impact Fees

     *   June 9, 2017--Speaker TBD

     *   July 14, 2017--Speaker TBD

September 9, 2016 | Permalink | Comments (0)

Monday, September 5, 2016

Zoning's Next Century, Part 3: Why the Quiet Revolution Failed, A Series by John R. Nolon

Zoning’s Next Century

Why the Quiet Revolution Failed

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University


New York’s historical failure to wrest land use control from local governments demonstrates why they remain in charge of land use planning and regulation. This may explain, as well, why federal and state efforts to assist localities and guide their policies succeed, while top down mandates so often fail.   This post is taken from forthcoming article on the evolution of land use law in New York and is based on the author’s own experience.[1]

My personal journey with New York’s land use law began over 25 years ago as we searched for strategies to achieve what was then a new concept: sustainable development. In 1993, I founded the Land Use Law Center for Sustainable Development at Pace University School of Law, now called the Elisabeth Haub School of Law. At the request of President Clinton’s Council on Sustainable Development, we began our analysis by assembling an Advisory Committee on Sustainable Development in the Hudson River Valley…. The Council asked us to project current land use trends 50 years forward, to determine whether they were sustainable and, if not, to identify the key obstacles to sustainability and the most effective strategies to remove those obstacles….

            We did several studies, including one on what we called pacelization – the rate at which large parcels of land were being subdivided into smaller parcels for development. Projecting the current rate  forward revealed that the amount of open land in the region would decline from 60% then to around 30% in the year 2045, that there would be a 400% increase in what transportation planners call vehicle hours of delay, and that for every one percent of population added we would urbanize seven percent more land.  [This trend was clearly not sustainable.] …

            The President’s Council had asked us to identify the most formidable obstacle to the sustainable development of the Hudson River Valley and the best strategy to remove that obstacle.  To answer this question, we had to review the history of these matters in New York.  The state’s story involves a tug of war regarding localism, regionalism, and state control of land use decisions.  Every New York governor since the Great Depression has made some statement about the importance of having cogent state policies on land use to guide local decisions with little effect….       

            We reflected on the national experience as well.  Environmental and land use study commissions, courts, and commentators long bemoaned the parochial effect of local land use decisions and their tendency to exclude affordable housing and to shift environmental and economic impacts to nearby communities.  These concerns gave rise to what became known as the “quiet revolution in land use control” which was advocated by a 1971 report of the U.S. Council on Environmental Quality.  The “revolution” envisioned state legislative efforts to adopt growth management legislation, establish regional land use planning agencies, and tether local decisions to state-adopted land use principles or plans. In 1968, the Douglas Commission, appointed by President Johnson, issued its Report on Urban Problems, Building the American City.  The Commission recommended that each state create a state agency for land use planning and prepare state and regional land use plans. [Our search for effective state and local planning in other states was not fruitful.] For a time, New York led the nation in this direction….

            The success of the Adirondack Park Agency [with its regional control of land use planning] and the hortatory language of the Douglas Commission and the Council on Environmental Quality led state planners in New York to think more ambitiously.  In early 1970s, the New York legislature was presented with the Statewide Comprehensive Planning Act, which provided for the creation of state, regional, county, and local plans – all cross certified and consistent.  At the time, this was the nation’s most far-reaching attempt to guide and constrain local land use decision-making.  The perceived threat to local control was clear, and the political reaction was predictable, swift, and definitive.  The bill was withdrawn and the New York Office of Planning Coordination – the agency that proposed it – was voted out of existence by the state legislature….

            Strong regionalism has not prevailed in New York for the same reason it has not prevailed in most states. Former Speaker of the House Thomas P. O’Neill Jr., once quipped that “all politics is local.”  All reform efforts aimed at constraining local control must overcome this political reality.  The danger in advocating top-down, statewide land use solutions is that it identifies local control as the problem to be solved, rather than the base on which to build an intermunicipal process, responsive to regional and state needs.  The challenge for advocates of a regional approach to land use planning and control is to identify effective regional processes that respect the critical role that local governments play in land use decision-making.  To be politically palpable, these solutions must be perceived not as methods of imposing a state or regional body’s will on local governments but as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time…..

            This was our experience by the time the President’s Council asked us its provocative question: What is the best strategy for removing the most formidable obstacle to the sustainable development of the Hudson River Valley?  The 250 representatives of various groups interested in land development and conservation who testified at our final hearing on the matter kept reminding us of the political reality of land use: local leaders are the gatekeepers of the system.  In the continuing absence of national or state-mandated solutions, attention should be paid, they said, to strengthening the system at its foundation. 

            Our response to the Council was that, if such significant control was to remain with local governments and if the local decision-making system is driven primarily by local leaders, most of whom are volunteers with little experience in the field, then we would recommend an aggressive program to train these critical participants in the development of plans and regulations for the future of the Hudson River Valley. [This program has demonstrated considerable success in fostering sustainable land use plans and regulations and, even, generating several intermunicipal land use councils. These few successes fall short of creating effective regional or state control.]

            That said, this experiment in New York does suggest a strategic path.  If local power is so resilient, then perhaps embracing local governments and urging them to collaborate with a national, state, and regional strategy that is designed to honor their concerns and is based on their participation would be a quicker route to more a comprehensive, less cacophonous approach to land use control. As Thomas Jefferson said: “I know of no safe depository of the ultimate power of society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”

[1] Zoning’s Centennial (1916-2016) – The Evolution of Land Use Law in New York, forthcoming New York Zoning Law and Practice Report (Sept/Oct 2016).

Previous posts in the Zoning's Next Century are listed below:

Part 1:  An Agenda for the Next Century

Part 2:  Foundations from the 17th Century

September 5, 2016 | Permalink | Comments (0)

Tuesday, August 30, 2016

Florida Law Events Celebrate 100 Years of Zoning

Michael Allan Wolf (Florida) sends news of events this fall at Florida Law celebrating 100 years of zoning.  Details below.

Florda Events


August 30, 2016 | Permalink | Comments (0)

Uber-ing the last mile home: New approaches to public transit in low density suburbs

KQED, the local San Francisco NPR affiliate, had a story last week about an East Bay suburban community, Dublin, that is trying out Uber-like companies (collectively typically called transportation network companies) to service the "last mile" from home to BART.  Here is part of the story:

The transit agency that operates in Dublin is preparing to partner with ride-hailing services Lyft and Uber, as well as taxicab companies, to help commuters find rides in areas of the suburbs where public transportation is sparse or nonexistent.

The Livermore Amador Valley Transit Authority has committed $100,000 for the pilot program in Dublin and has submitted an application for a $100,000 grant from the Alameda County Transportation Commission, said Christy Wegener, director of planning and communications for LAVTA.

Dublin will join other cities testing out the partnerships as a way to connect people to larger public transportation systems like BART.

Rest of the story here.  I think these test runs of using TNCs instead of public buses in low-density suburban areas has a lot of promise.  The devil, as always, will be in the details.  The results of this and other studies are going to be fascinating to watch.

David Schleicher (here and here) and I (here), among others, have written about this trend for those interested.


August 30, 2016 | Permalink | Comments (0)

Idaho Law's Citizens Planning Academy to feature James Corless of Transportation for America on Sept. 7

For those local in Boise, please join us at Idaho Law for the next Citizens Planning Academy, which will feature James Corless of Transportation for America:

James Corless, Director of Transportation for America, will speak about Acting Locally to Gain Funding for Transit and How to Use State and Federal Policy to Support Local Change at the September Citizens Planning Academy session on Wednesday, September 7th, from 6 – 7:30 PM (last half hour for discussion). The session will be held at the University of Idaho College of Law’s Boise location in the Idaho Law Learning Center (514 W. Jefferson Street, Room 325). Please use the eastern entrance. Parking is available behind the building on the eastern side in the spots marked “visitor.”

Thank you to COMPASS for this opportunity. If you cannot attend this session or wish to hear Mr. Corless speak on other related topics, he will be speaking Tuesday, September 6th at COMPASS on Innovations in Public Transportation.

The Citizens Planning Academy is a collaboration of Idaho Smart Growth and the University of Idaho College of Law in Boise.  We generally hold monthly sessions on the first Wednesday of each month at the Idaho Law & Justice Learning Center from 6:00 – 7:30 pm. The purpose of the Academy is to help citizens interested in participating in planning efforts throughout the Treasure Valley—from regional to the neighborhood—to understand how to become effective advocates on land use, transportation and other planning topics. Each session will cover one topic. We will bring in staff or other knowledgeable presenters for each session and discussion will be encouraged. The sessions are free and open to all.

August 30, 2016 | Permalink | Comments (0)

Monday, August 29, 2016

Zoning's Next Century, Part 2: Foundations from the 17th Century, A Series by John R. Nolon

Zoning’s Next Century

Foundations from the 17th Century

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University


This excerpt from a forthcoming article demonstrates that the earliest foundations of land use control were local and that local circumstances dictate how land use should be controlled.[1]

Although comprehensive zoning restrictions, adopted by municipal governments, were new in 1916 when the first New York City Zoning Resolution was adopted, the idea that neighborhoods should be carefully planned and regulated dates back in New York to at least April 22, 1625. On that date, the Directors of the Dutch West India Company adopted use and bulk regulations for the settlement of lower Manhattan.[2] These were adopted as special instructions to the Commissary and Councilors, “according to which they are to regulate themselves when they have found a suitable place in which to establish a settlement….” Like the first New York City Zoning Resolution, these regulations were based on an underlying plan that distributed land uses and building types in a logical pattern.[3]  Many of the regulation’s planning concepts and building standards are precedents for modern zoning and planning strategies.

First, the Dutch West India Company’s document instructs the official surveyor to stake out a quadrangle, with one side lying open to the water. The document provided dimensions to be followed, with further instructions for exits and bridges connecting the settlement to the lands beyond its walls. Here is a parallel to modern urban growth boundaries and capital plans for infrastructure.  Next, land was to be reserved for dwellings, some particularly for farmers, pastors, doctors, single individuals, and commanders, with vacant land designated for residential development in the future, similar to today’s residential zoning prescriptions. Other lands were designated for storage of supplies and goods, a hospital, and a market square, beginning the definition of the public realm. Provisions were made for street widths of varying dimensions similar to those found in today’s subdivision regulations. Other lands were set aside for vineyards and gardens, similar to rural zoning for farming, or, more recently, to urban farming provisions. Additional details included building heights and the widths and depths of lots: familiar provisions in today’s bulk and area standards. Even elements of building code standards were present, including the size and shape of kitchens and the thickness of beams.

This is perhaps the first land use regulation in the New World. For nearly 400 years, local governments in New York have been regulating land use and buildings, with each generation using it to address new and evolving opportunities and problems. In 1625 the issue was how to design a settlement in hostile territory.  Today’s challenges include how to respond to an increasingly hostile environment by designing resilient and sustainable communities. 


[1] Zoning’s Centennial (1916-2016) – The Evolution of Land Use Law in New York, forthcoming New York Zoning Law and Practice Report (Sept/Oct 2016).

[2] Document on file with the author.

[3] Note that this is public land use planning. In 1621, the Dutch West India Company was chartered by the Dutch Republic, much like the State of New York’s later authorization of the charter of New York City. The Company’s Manhattan territory was designated the provincial capital of the lands under its jurisdiction.

Previous posts in the Zoning's Next Century are listed below:

Part 1:  An Agenda for the Next Century


August 29, 2016 | Permalink | Comments (0)

Sunday, August 28, 2016

Conference Announcement: Pace's Annual Land Use and Sustainable Development Conference

15th Annual Alfred B. DelBello Land Use and Sustainable Development Conference

The 2016 Land Use and Sustainable Development Conference will be held at Pace Law School on December 8, 2016. This year's theme will be The Economics and Equity of Sustainable Development.  For more information or to become a sponsor please visit the conference page.

August 28, 2016 | Permalink | Comments (0)

Friday, August 26, 2016

Mandelker on Zoning Barriers to Manufactured Housing


Daniel R. Mandelker (Washington U. Law) has just published "Zoning Barriers to Manufactured Housing" in The Urban Lawyer.  Here is the abstract:

Manufactured housing is a major affordable housing resource for millions of people. Restrictive zoning barriers limit its availability, even though studies have discredited myths, such as objections to its safety and quality. A national statute, the National Manufactured Housing Construction and Safety Standards Act, authorizes building code standards that address all aspects of safety, durability and quality, and that preempt state and local codes that deal with this problem. The Act does not preempt restrictive zoning, and Congress should amend the law to cover zoning restrictions. Judicial control of zoning barriers to manufactured housing is unsatisfactory and requires statutory change. Courts accept unequal treatment that applies restrictive zoning only to manufactured housing, though some statutes prohibit discrimination. The cases uphold exclusions from residential districts if manufactured housing is allowed elsewhere. Some statutes prohibit exclusion by requiring manufactured housing as a permitted use in all residential districts, or allow a community to decide what residential districts must accept manufactured housing. Courts uphold aesthetic standards, such as roofing and siding requirements, and some statutes authorize them, though limitations are needed to protect manufactured housing from exclusionary treatment. Communities often require approval of manufactured housing as a conditional use, and approval as a conditional use is often denied. Courts have upheld conditional use denials, and statutory protective standards are needed that will prevent abuse of the conditional use requirement.

August 26, 2016 | Permalink | Comments (0)

Wednesday, August 24, 2016

Will broadband make West Virginia communities more walkable? Or, more realistically, will broadband make West Virginia hollers the Wall Street of document review?

I received the following press release from EPA today noting that the Obama administration plans to "revitalize downtowns through broadband service."  While broadband service in rural areas is certainly a major issue, I am intrigued--and maybe a bit dubious--that access to broadband will "improve the environment and public health in Appalachian communities."

It seems more likely to me that broadband in rural communities presents a different kind of opportunity:  the outsourcing of monotonous data-heavy work like, say, document review.  Orrick, the major San Francisco law firm, already started a crazy-successful document review center in Wheeling, West Virginia.  While I am dubious that broadband will make West Virginia communities more walkable, access to broadband does make such rural places very competitive for big-city jobs that are over-priced for their market.  

If I were any of these communities getting the broadband grants, I would scrap the plans below.  In their stead, I would invest in a really good barrista, a really good farm-to-table restaurant, rehab a beautiful old mill building to Class A specs with LEED Platinum credentials, then go fishing in New York City for BigLaw firms seeking to follow the Orrick model.

Obama Administration to Help Appalachian Communities Revitalize Downtowns through Broadband Service

WASHINGTON –Today, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Agriculture (USDA) and the Appalachian Regional Commission (ARC) announced the selection of 10 communities in six states that will participate in the Cool & Connected planning assistance program, an innovative initiative to help people use broadband service for downtown revitalization and economic development.

“Cool & Connected will help create vibrant, thriving places to live, work, and play,” said EPA Administrator Gina McCarthy. “We’re excited to be working with these local leaders and use broadband service as a creative strategy to improve the environment and public health in Appalachian communities.”

Through Cool & Connected, partner communities will receive direct technical assistance from a team of experts to develop strategies and an action plan for using expected or existing broadband service to create connected, economically vibrant main streets and small-town neighborhoods. By combining broadband service with other local assets, such as cultural and recreational amenities, communities can attract and retain investment and people, revitalize downtowns and diversify local economies. Cool & Connected also protects the environment by encouraging the reuse of existing infrastructure and by improving walkability. For example, strategies that help communities reinvest in established areas can help preserve open spaces and farmlands and protect air and water quality.

EPA support for Cool & Connected is provided through the Office of Sustainable Communities, which helps communities develop in ways that protect public health and the natural environment by creating walkable, livable, economically vibrant communities, and supporting reinvestment in existing neighborhoods.

USDA support is provided by the Rural Utilities Service, which provides funding for critical infrastructure including electricity generation and transmission, water and waste water facilities and telecommunications for rural America.

The Appalachian Regional Commission support is through the Obama Administration’s Partnership for Opportunity and Workforce and Economic Revitalization initiative (POWER), a multi-agency effort to invest federal resources in communities and regions that have relied on the coal industry and are impacted by the changing energy landscape.

Cool & Connected Partner Communities:


•           Haleyville, Ala: To pursue a downtown broadband strategy that promotes business recruitment and development, diversifies the economy, and connects the library and City Hall to people through digital archives and e-government initiatives.

•           Portsmouth, Ohio: To help the Southern Ohio Port Authority use their historic and commercial districts’ broadband and public Wi-Fi capabilities to increase the number of people who walk and open businesses. The plan will also connect downtown amenities to recreation areas by using information kiosks and QR Code/smart phone technology.

•           Zanesville, Ohio: To increase new employment opportunities, support an emerging arts scene, and develop an app for visitors to explore their walkable downtown.

•           Clarion, Penn.: To increase their local communications capacity to market nature-based tourism, motivate people to invest along the historic Main Street, and create an incentive for students at Clarion University to stay in the community.

•           Curwensville, Penn.: To support the Curwensville Regional Development Corporation in creating a downtown co-working space for professionals, students, or entrepreneurs to use as an alternative to working from home or commuting long distances.

•           Erwin, Tenn.: To help the city and Erwin Utilities develop a comprehensive marketing plan for their downtown broadband connection, with the goal of attracting young professionals, visitors, and investors.

•           Jonesville and Pennington Gap, Va.: To market and develop Wi-Fi zones, extend broadband service, and promote main street development by attracting potential anchor tenants.

•           Bluefield, W. Va.: To develop a plan for their downtown area to take advantage of the available broadband and market their businesses through the best outlets.

•           Weirton, W. Va: To help the Mary H. Weir Public Library and community partners develop a plan to increase and expand broadband services and Wi-Fi zones, in order to bring visitors, new families, and businesses to the downtown area.

•           Williamson, W. Va.: To support the Williamson Health and Wellness Center in leveraging broadband access and Wi-Fi zones downtown and at educational institutions to cultivate a skilled workforce, help people open businesses, and enhance the use of heath care technology.

August 24, 2016 | Permalink | Comments (0)

Seeking guest bloggers for 2016-2017 academic year

After a several month hiatus, I am pleased to be back blogging at Land Use Prof Blog where I have blogged since 2012.  

As I have done in previous years, I am sending out a general call for bloggers to join me on the blog during the 2016-2017 academic year.  Our requirements for guest bloggers are quite reasonable--1 or 2 posts a week for a month--adding up to 4 to 8 posts a month.  You can write about your own work, events of the day, or, you know, anything else land use law-related.  During the academic year, the blog receives about 10,000 - 15,000 page views a month and, I have found, is an invaluable way to get the word out about your work.

The only restriction on guest bloggers is that, given the platform, a blogger must either be a "prof" of some sort--adjuncts and VAPs welcome--or an aspiring prof going on the market this year. 

If you are interested, send me an e-mail at millers <at> uidaho.edu and we can work out details. 

August 24, 2016 | Permalink | Comments (0)

Tuesday, August 23, 2016

Ferguson, Land Use and the Voting Rights Act

Yesterday, a district court in the Eastern District of Missouri held that political processes for electing Board members in the Ferguson-Florissant School District deprive African American voters of an equal opportunity to elect representatives of their choice in violation of § 2 of the Voting Rights Act.  As the court noted in a detailed decision, "[d]etermining whether a § 2 violation exists is a complex, fact-intensive task that requires inquiry into sensitive and often difficult subjects."  In making its evaluation, the court took the time to evaluate detailed testimony about how land use regulation had affected the African-American community in the St. Louis area.  I found these excerpts particularly of interest:

B. The Historical and Ongoing Effects of Discrimination in the State, St. Louis Metro Area, and FFSD (Senate Factors 1 and 5)

Senate Factor 1 examines “the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process.” Bone Shirt, 461 F.3d at 1021. Senate Factor 5 asks whether African Americans “bear the effects of discrimination in such areas as education, employment and health.” Id.
The parties have stipulated to the history of official discrimination in the State of Missouri and in the St. Louis Metropolitan Region. Joint Stip. ¶¶ 226-230. The District, however, argues that Plaintiffs have failed to establish the history of discrimination and its effect in the District itself, and have therefore failed to prove Senate Factors 1 and 5. I find that both of these factors weigh heavily in favor of Plaintiffs.
1. Official discrimination
Throughout the 19th and 20th centuries, many Missouri statutes and constitutional provisions permitted—or required—discrimination against Black Missourians. See Joint Stip. ¶¶ 226-230, 241, 251, 253; Dred Scott v. Sandford, 60 U.S. 393, 398 (1856); Mo. Const. of 1865, art. II, § 18 (restricting franchise to white males); U.S. Const. amend. XV; Mo. Const. of 1865, art. V, § 2 (requiring that the governor be a white man), art. V, § 12 (requiring that the lieutenant governor be a white man), art. IV, § 3 (requiring that members of the Missouri house of representatives be white men), art. IV, § 5 (requiring that state senators be white men), art. III, § 6 (requiring that all voters be white men); RSMo. ch. “Negroes and Mulattoes,” § 2, at 600 (1825) (barring Black Missourians from bearing witness in court); RSMo. ch. 146, § 2-2, at 797 (1870) (barring Black Missourians from serving as jurors); Mo. Const. of 1875, art. XI, § 3 (amended to require, rather than permit, racially segregated schools); Missouri v. Jenkins, 515 U.S. 70, 76 (1995) (Ginsburg, J., dissenting).
*46 Jurisdictions within FFSD, including the municipalities of Ferguson and Berkeley, also historically engaged in purposeful discrimination against African Americans in education, housing, and other areas. See Joint Stip. ¶¶ 254-60; United States v. Missouri, 388 F. Supp. 1058 (E.D. Mo. 1975), aff'd, 515 F.2d 1365 (8th Cir. 1975); Gordon Testimony, Trial Tr. vol. 1, 119:17–121:1; PLTF-40, Gordon Rep., at 16; Trial Tr. vol. 2, 12:4–13:15, 42:1-17 (Henson explaining that his mother, an African American resident of what was a smaller FFSD in the 1930s and 1940s was prohibited from attending school there because of her race, so she was forced to endure long commutes to Black schools in other districts); Trial Tr. vol. 2, 64:24–65:10 (Graham testifying that she attended a segregated one-room schoolhouse in another part of St. Louis County, and some of her classmates were bused from Kinloch); id. 68:3–69:15.
As Dr. Gordon testified, historical policies, including not only educational segregation and the racially-motivated use of incorporation but also the way houses, streets, and public infrastructure were physically built, were “intended and designed to create starkly segregated and separate [school] districts.” Trial Tr. vol. 1, 121:2-24; see also PLTF-40, Gordon Decl., pp. 16, 21-23.
The three school districts that now comprise the present-day FFSD—the overwhelmingly-white former Ferguson-Florissant and Berkeley school districts and the predominantly-Black Kinloch school district—demonstrate how political and physical discrimination created and perpetuated a racially dual system of school districts. See PLTF-40, Gordon Rep., at 16, 21-22; Gordon Testimony, Trial Tr. vol. 1, 119:17–121:1; see also Trial Tr. vol. 2, 12:4–13:15, 42:1-17 (Henson testimony); Trial Tr. vol. 2, 64:24–65:10, 68:3–69:15 (Graham testimony); Missouri, 515 F.2d at 1367 (noting that Kinloch had been forced to cobble together schools “markedly inferior to the opportunities offered in the adjoining Berkeley and Ferguson districts”). The former Ferguson-Florissant and Berkeley school districts displayed commitment to unlawfully maintaining Kinloch as a segregated district. For two decades after the Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), this dual system persisted despite school reorganization study recommendations and requests from the school district itself that Kinloch be consolidated with other school districts, see Missouri, 515 F.2d at 1367, flouting the constitutional obligation to “take such affirmative measures as are necessary to deestablish that dual system and to eliminate the continuing vestiges of that system.” United States v. Missouri, 363 F. Supp. 739, 745, 747 (E.D. Mo. 1973). It ultimately took a lawsuit brought by the United States Department of Justice and a federal court order to force the overwhelmingly white school districts to consolidate with their predominantly Black neighbor. See Missouri, 515 F.2d at 1366-67; Missouri, 388 F. Supp. at 1060; PLTF-40, Gordon Decl., pp. 16, 22-23; Trial Tr. vol. 1, 119:14–121:24.
FFSD is part of St. Louis County, the larger St. Louis metropolitan area, and the state of Missouri, each of which has also historically engaged in official discrimination. Dr. Gordon testified that the processes of segregation and discrimination of those jurisdictions affected and fundamentally continues to affect the lives of FFSD residents in “particularly powerful” ways. Trial Tr. vol. 1, 115:13–116:13; 100:4–101:1 (noting that “it's particularly important to have a broader focus for a metropolitan area like St. Louis because the municipal fragments, the corporate fragments, including municipalities and the school districts, are very small and in some respects very artificial political divisions”); id. at 101:14–20; id. at 102:13–103:12 (explaining that official laws and policies restricting land use and regarding urban development, urban redevelopment, zoning, and mortgage finance continue to have “enormous consequences” on populations' opportunities to purchase house and accumulate housing equity, which in turn affected the quality of schools available to a population and has sustained a “racialized gap in wealth” that “persist[s] to the present day”).
*47 Up until at least the mid-1960s, while official policies in the St. Louis metropolitan area intended to create and perpetuate racial segregation were “at times blocked by the courts,” they nonetheless continually “shift[ed] in form” to achieve the same goal of segregation. See, e.g., Gordon Testimony, Trial Tr. vol. 1, 104:5-20; see also id., 105:17–107:18 (discriminatory real estate practices in the area, including realty licensing requirements and race-restrictive deed covenants); Trial Tr. vol. 1, 107:19–111:9 (noting that, when restrictive covenants were effectively blocked by Shelley v. Kraemer, 334 U.S. 1 (1948), realtors and developers “quite publicly mobilized to accomplish the same thing by other means,” including strengthening their professional code of ethics to require residential segregation and denying home showings and sales to African Americans, and their efforts were reinforced by official federal mortgage lending policy and redlining, as well as “a flurry of” municipal incorporation for the “quite explicit” purpose of exclusionary zoning); see also id. at 110:17-22; Joint Stip. ¶¶ 235-36; PLTF-40, Gordon Rep., at 7-16; PLTF-48, Kimball Rep., at 8-10.
Providing multiple salient examples from the St. Louis metropolitan area, including in North St. Louis County and FFSD itself, Dr. Gordon testified that, although official policies of urban renewal and redevelopment in the mid- and late-20th century were ostensibly intended to “address some of the damage...of segregation and the collapse of central cities,” they “actually sharpen[ed] and deepen[ed] segregation both in St. Louis and St. Louis County” by using federal money and the power of eminent domain to “target[ ] neighborhoods of mixed use and largely African-American occupancy for removal or destruction so the land could be used for a higher use.” See Trial Tr. vol. 1, 112:4–115:6 (also describing how, between 1950 and 1970, about 75,000 people were displaced in the metro area by government renewal or development, the “vast majority” without any relocation assistance, 84% of whom were African American, and when they moved from downtown to suburban neighborhoods, were then “targeted for renewal or code enforcement or other attention”); see also Joint Stip. ¶ 242; see PLTF-40, Gordon Rep., at 26-27.
2. Continuing effects of past discrimination on political participation African Americans in FFSD continue to bear the effects of past discrimination. As Dr.
Gordon testified, one can still see once-formalized policies of racial segregation and housing discrimination “inscribed on [the regional] landscape” and that the formalized pattern of segregation by deed covenant had been “written into land use zoning,” which is “still very much the way in which we organize property and housing opportunity in a metro area,” causing officially sanctioned race discrimination and segregation to “persist to the present day.” Trial Tr. vol. 1, 111:15–112:3.
According to Dr. Gordon's testimony, because of this persistent physical segregation, when the federal court desegregation order tied together the overwhelmingly white Berkeley and former Ferguson-Florissant and predominantly-Black Kinloch school districts, it created a present-day FFSD that has “trade [d] segregation between districts for segregation within a district.” Trial Tr. vol. 1, 121:2-24. This racial segregation has settled along a north-south divide within FFSD that persists today and is reflected in socioeconomic, educational, and other disparities. See Gordon Testimony, Trial Tr. vol. 1, 122:1–123:14, 126:7–127:5, 127:17–128:1, 128:9–129:11; Trial Tr. vol. 3, 81:1–82:12 (Green testimony); Trial Tr. vol. 4, 166:19 (Thurman testimony); see also PLTF-40, Gordon Rep., at 2-4, 27-28, Map 10 (p. 29); see also PLTF-44, Cooper Decl., ¶ 34, Fig. 7 (p. 14), Ex. C (p. 39).
Housing equity is the principal form of wealth for most families, so barriers to equal opportunity to home ownership that African Americans in St. Louis County have faced for decades have had and continue to have a substantial negative impact on a family's opportunity to accrue and retain wealth, to get favorable loan terms, to access public services and high-performing schools, and to benefit from increasing property values. See Gordon Testimony, Trial Tr. vol. 1, 115:25–118:19; PLTF-40, Gordon Rep., at 20-21, 23-24, 27-28, 32; see also PLTF-41, Gordon Resp., at 3-4; Joint Stip. ¶¶ 244-46; Gordon Testimony, Trial Tr. vol. 1, 116:9-13 (“the best way to characterize it is that white families in the St. Louis area were able to get on a sort of escalator-of-wealth creation in the 1930s and 1940s that African Americans were largely barred from for at least a generation”). As Dr. Gordon also testified, the wealth gap has increased recently “as a result of the last housing bubble and bust.” Trial Tr. vol. 1, 116:24– 117:1; see also generally Gordon Testimony, Trial Tr. vol. 1, 99:4–119:7. The wealth gap is one chief driver of continuing (and in some cases widening) disparities between African Americans and whites in FFSD in areas such as educational achievement, level of poverty, employment, and health care. PLTF-48, Kimball Rep., at 10; PLTF-40, Gordon Rep., at 21.
*48 These continuing effects of past discrimination impact the ability of the African American community in FFSD to participate in the electoral system. Dr. Kimball testified that political scientists who study voting behavior commonly use the “calculus of voting” as a cost-benefit framework for determining whether and why individuals, as well as groups of people, do and do not vote. See Kimball Testimony, Trial Tr. vol. 2, 114:8–115:4. The calculus takes into account the probability that one's vote will determine the outcome of an election, the benefits of seeing one's preferred candidate win an election and potentially implement preferred policies, and the costs of voting, including: informing oneself about candidates, completing the administrative process of registering to vote, locating one's polling place, and getting time off work. Id.
Dr. Kimball testified that this cost-benefit framework “indicates that for many people the decision of whether to vote or not can be a close call, and that...relatively small changes in either the benefits or the cost side of the equation can substantially increase or decrease the likelihood of voting in an election.” Trial Tr. vol. 2, 115:5-11. A small change in benefit or cost has a more pronounced effect on voters with less education and/or less income, and/or who are “less habitual” voters, because for them “it's a little more difficult to overcome the cost that is associated with registering and turning out to vote, learning about candidates and so forth.” Kimball Testimony, Trial Tr. vol. 2, 115:12-25; see also PLTF-48, Kimball Rep., at 11-12; Gordon Testimony, Trial Tr. vol. 1, 130:15–131:1 (“the scholarly consensus is very clear that when a population is disadvantaged economically, when they're disadvantaged in terms of job opportunities, educational opportunities, or residential opportunities, that these [disadvantages] affect civic participation”). Consistent with Dr. Kimball's “calculus of voting” framework, Dr. Gordon testified that based on his survey of historical discrimination and segregation, African Americans in FFSD bear the effects of past discrimination in ways that affect their ability to participate in the political process. Gordon Testimony, Trial Tr. vol. 1, 145:10-24; see also Kimball Testimony, Trial Tr. vol. 2, 144:2–147:24, 148:18–149:1; Trial Tr. vol. 3, 20:11-17.
There is ample evidence that the costs of voting are higher and the benefits lower for African American residents of FFSD as compared to white residents. There continue to be undisputed disparities between Black and white residents of FFSD on almost every socioeconomic indicator, including employment, wealth, homeownership, access to health care, and other factors underlying basic economic security. Joint Stip. ¶¶ 248, 269-71; PLTF-40, Gordon Rep., at 2-4, 27-28, Map 10 (p. 29); PLTF-41, Gordon Resp., at 3-4; Paulette-Thurman Dep., 63:8-13; PLTF-48, Kimball Rep., at 9-10, 12; PLTF-44, Cooper Decl., ¶¶ 36-37; PLTF-45, Cooper Suppl. Decl., ¶¶ 17-20; Gordon Testimony, Trial Tr. vol. 1, 126:10–127:5 (rates of poverty are higher in majority-Black block groups in the District); Trial Tr. vol. 1, 128:2–129:11 (same for “neighborhood stress” indexes, which measure block groups' engagement with the labor market and poverty index); Cooper Testimony, Trial Tr. vol. 1, 200:10-14 (in FFSD, “[o]n almost every metric, African Americans lag behind non-Hispanic whites”); Kimball Testimony, Trial Tr. vol. 2, 151:3-19; Rodden Testimony, Trial Tr. vol. 5, 75:20-22.
There are also undisputed disparities between African American and white FFSD students in educational achievement (including enrollment in advanced classes, the FFSD gifted and talented program, enrichment programs, extracurricular activities) and the application of discipline (including in-school suspensions, out-of-school suspensions, referrals to law enforcement, and corporal punishment). Joint Stip. ¶¶ 261-62, 265-67; PLTF-93, FFSD Data Reported to Office of Civil Rights – Course Enrollment by Race (Ex. 17 to Dep. of Brian Scott Ebert, June 16, 2015), at 1-3, 16, 18; PLTF-84, FFSD Data on Office of Civil Rights Website – LEA Summary of Selected Facts (Ex. 5 to Dep. of Paul Morris, June 15, 2015), at 1-5; PLTF-85,


August 23, 2016 | Permalink | Comments (0)

Call for Applications: Community Planning Assistance for Wildfire (CPAW) Program

I have been working with the leaders of CPAW as part of my wildfire research the past year and have been very impressed by this group.  They are now inviting new communities into the CPAW program.  For any western community looking to use land use planning to address wildfire risks, participating in CPAW might be the best first step.  Feel free to contact me if you would like to learn more about why I think CPAW is a great program.  Here is the announcement on CPAW:

The Community Planning Assistance for Wildfire program (CPAW) provides technical consulting services in the form of land use planning, forestry expertise, mapping and risk assessment.The CPAW team is excited to inform you that the 2016-2017 CPAW application process is now open. Applications can be accessed via the website: planningforwildfire., and will be accepted until September 23, 2016, 5pm MT.

During the 2016-2017 cycle, five communities will be selected based on a competitive application process. Selected communities are not responsible for any direct costs associated with CPAW services provided, but staff time to participate is required. All advice and assistance given to the community will be limited to services that are intended to reduce the risk from wildfires. Local governments will retain sole authority for implementation of any land use planning recommendations provided through CPAW. Any community in the U.S. can apply, and eligible jurisdictions include towns, cities, or counties having authority over local land use and zoning decisions (unincorporated communities require county application). Only applications demonstrating support from both the community’s planning and fire departments will be considered.

Attached is an informational flyer to share with your colleagues.

If you have questions about the program or the application process, please contact me at ben@wildfireplanning.com or directly at 847-754-8745. The CPAW team is eager to begin working with our next round of communities, and we hope that you apply!

Download CPAW_Application_Flyer_2016-2017


August 23, 2016 | Permalink | Comments (0)

Tuesday, August 16, 2016

Zoning's Centennial blog series by John R. Nolon now available in a collection

A note from John R. Nolon (Pace):

Earlier this year, under the title of "Zoning's Centennial," I posted 21 blogs tracking the birth, maturation, and contemporary relevance of zoning: aka land use law. I have compiled them into a single document for interested professors and students, particularly those studying land use law.  If you email me off line, I will be happy to send it along.  E-mail Prof. Nolon at jnolon@law.pace.edu.

Relatedly, Patty Salkin (Touro) and I are pleased to announce that Stephen R. Miller (Idaho) and Jonathan Rosenbloom (Drake) have joined us as authors of our Land Use and Sustainable Development Law casebook, the ninth edition of which will be available next year.

August 16, 2016 | Permalink | Comments (0)